The judgment emphasizes the requirement of proving desertion as intentional permanent forsaking and abandonment without consent and without reasonable cause, and the need for the deserted spouse to affirm the marriage and be willing to resume married life.

JUDGMENT :

Anu Malhotra, J.

1. The present appeal under Section 28 of the Hindu Marriage Act, 1955 (as amended) has been filed by Ms. Shashi Prabha against the impugned judgment dated 31.01.2002 in HMA No. 481/01 of the then learned Additional District Judge, Delhi vide which in a petition under Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act, 1955 (as amended) filed by Mr. Ashok Dhawan i.e. the respondent to the present appeal as petitioner thereof, on the ground of alleged cruelty and desertion, though the petition seeking the grant of a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (as amended) was declined, nevertheless the petition filed by the husband i.e. the respondent herein against the appellant herein his wife on the ground of desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (as amended) was allowed.

2. As the parties to the present appeal were married on 30.08.1982 in accordance with Hindu Rites and Ceremonies and lived together till 14.03.1995 as contended by the respondent and till 15.03.1995 as contended by the appellant herein, the parties to the present appeal have admittedly not lived together from 16.03.1995 in any event till date. There is no child born out of the wedlock between the parties. Though, it was contended through averments made in the petition HMA No. 481/2001 by the respondent that a newly born male child was taken in adoption in the month of February, 1994 on the instance of the appellant herein, the said child was allegedly not cared for by the appellant who persisted in her cruelties both with the respondent-husband as well as on the minor child and ultimately left the matrimonial home deserting the respondent spouse on 14.03.1995 when she took away all her articles of jewellery and clothes with her.

3. The alleged factum of adoption of the minor child and cruelty to the minor child has not been accepted by the learned Trial Court with it having been held that in the absence of the name of the putative parents of the minor child, taking into account the factum that there was no adoption deed executed and also the factum that there was no voluntary consent of the wife i.e. the appellant herein, the adoption of the minor child as contended by the husband i.e. the respondent to the present appeal and the petitioner of the HMA petition seeking divorce was not valid. The impugned verdict also observed to the effect that the respondent herein i.e. the petitioner of the HMA petition thereof seeking grant of divorce had not been able to prove that his wife has treated him with cruelty. No cross appeal was filed by the respondent to the present appeal i.e. the petitioner of the HMA petition no. 481/01 which had been initially instituted on 14.01.2000 and thus as observed hereinabove, the allegations of cruelty meted out by the appellant to the respondent have not been established.

4. Taking into account the factum that the allegations of cruelty against the appellant have not been held to have been proved and there being no cross appeal filed by the respondent herein against the impugned judgment, it is only the allegations under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (as amended) levelled through the petition and adjudicated upon by the learned Trial Court that are now being considered.

5. The averments made in the petition in relation to the aspect of alleged desertion are to the effect:-

"10. That on March 14, 1995, the respondent left the company of the petitioner on the pretext that she has to join same family get-together at her parents house. She also took all her jewellery and valuable clothes with her. When the respondent did not come back, the petitioner contacted the respondent at her parents' house and also at her office and requested her to come back and join the company of the petitioner. To the utter surprise of the petitioner, the respondent not only completely ignored the reasonable request of